Malpractice or Incomptence? Lawsuit?

[Enraged]

What is the name of your state? Alabama

This is quite involved so please forgive the length. My daughter and I have been in the middle of a custody battle for her daughter for nearly two years. The biological fathers parents have consistently harassed and fought us for custody the entire time. I have had custody of my granddaughter since she was 2 days old. My daughter has been with me the entire time. My goal has never been to keep them apart, just protect them. There has been court ordered grandparent visitation for the father's parents. We were informed that on every visitation, the other grandparents take her to the doctor or emergency room in order to try and find something to use against us. Well, they finally succeeded. On their last visitation I informed them that she had had a diaper rash due to the antibiotic Augmentin. She had been prescribed Nystantin Creme for this and that the diaper rash was almost completely gone but to please keep diaper rash ointment on her so that her bottom didn't become raw again. They took her to an ER, without consent from me again, and told the doctor that she had a suspicious diaper rash. The doctor claimed that my 22-month old granddaughter "acted poorly" when she tried to examine her rash. The doctor also said that she did a "vaginal" exam on her and determined that she didn't have a "hymen". She called children services and the police about her belief that my granddaughter had been sexually abused. She advised the non-custodial grandparent's not to let her come home. Within four days, we were back in court. My granddaughter was put in state custody to stay until she saw a specialist in child sexual abuse. The specialist said that she does have a "hymen" and that there were no signs of sexual abuse. I'm sure that anyone who is a parent is probably appalled at the fact that this can happen. Our family has been put through literal hell and are still going through it because of this. My granddaughter was happy and healthy and the center of our universe. Now she is quiet and shy and so unhappy. She has been put through so much and it isn't over yet. Please, can someone tell me if this is malpractice or incompetence or both on the ER doctors part? Once this is straightened out, is there a possibility of a lawsuit? Someone needs to pay for what they have put this sweet child through. Also, did the non-custodial grandparents have the right to seek medical treatment without my consent? Did the hospital have the right to even treat her? Any advice would be greatly appreciated.
Thanks

 

[lkc15507]

Oh my gosh. I am so very sorry for you. While I will completly defer to others for legal answers, I will make a couple observations. The rashes you described are often clinical indicators for healthcare providers of sexual abuse. Health care providers are obligated to report any such suspicions / indications to appropriate officials. The health care provider is not obligated to prove the abuse, only to report the possibility. With your granddaughter being a minor, of course any health care provider will consider her well being first without necessarily seeking the consent of the guardian, regardless of who presents her for care, and rightly so. Thank God, goodness, or whomever you will that the allegations were considered false, but, from the standpoint of a medical provider, I think the actions of the healthcare providers were appropriate given the situation and the information at hand. As far as the one that believed the abuse allegation, I doubt you can battle that one professional opinion as being any cause of damage even after the abuse is proven false. I don't presume to begin to comprehend your angst and anger as you have reason and knowledge to believe the less savory motives of the child's other relatives. But, I think that angst and anger at this point is displaced when aimed at the healthcare providers involved. God Bless. lkc15507

 

[rmet4nzkx]

As the previous poster stated there are mandated reporting laws and the mandated reporters need only report, they are not responsible to investigate, CPS does that. Infact if they fail to report, there are consequences to their license. It is not malpractice to report and you cannot sue the doctor for reporting in good faith possible cases of abuse. Yes the person having physical custody of the child can take the child for medical treatment and there are exceptions to confidentiality and consent re abuse. If they are leaving a trail of false accusations with medical providers and CPS, collect that record and eventually they will lose their credibility. It looks like a battle between two grand parents. How old are the parents of the child and why don't they have custody?

 

[Enraged]

Thank you for your replys. I understand the requirements of the physicians to report possible sexual abuse. My question is more to the incompetence in the physician saying that there was NO "hymen" when there was. I do believe in divine intervention but I don't believe that a hymen could grow back in a period of two weeks or even at all. As for the parents, they were 16 (father) and 17 (mother) at the time of the babies birth. They had been living together with the father's parents where they did drugs together and there was alot of abuse on the mother from the father. The mother came back to me after one really bad situation but on the day that she was to be released from the hospital, she informed me that she was taking the baby and going back home with him. I took emergency custody at that time. Since then the mother has gotten her act together and recently married a very nice young man. I see her receiving custody very soon, which was my hope from the beginning. The father has continued on his self destructive path and has had several run-ins with the law for assaults on minors. His visitation rights were revoked until he completes psychological evaluations. That happened months ago, but he has not completed them yet.
Thanks again for your advice.

 

[rmet4nzkx]

Remember your 22 months old grand daughter was making the exam difficult, while unfortunate, it isn't grounds for a lawsuit. Just a hint, a child of 22 months should be close to potty trained and rashes should be less by this time. Both parents were young, has your daughter gone through drug rehab? Parneting classes? NA? These will help with regaining custody after a reasonable period of sobrity and stability.

 

[panzertanker]

As rmet and IKC have stated, there are mandatory reporting laws for all healthcare professionals, and failure to report the possible abuse S/S can cause sanctions/licensure revocation. So the ER MD was correct. As for the "no hymen" question, a physical exam is a difficult thing to do on an adult, let alone a 22 month old; and as such, it requires alot of training and skill to correctly visualize a hymen, if one is present. That the MD stated there was no hymen is not litigious in and of itself, unless you can prove that it was stated falsely/maliciously. The MD was making a statement and then did the proper thing and referred the case/pt to DFCS for investigation. As far as you have explained it, I cannot see any damages. I understand you are angry/hurt, etc., but I would try to understand that the MD had the BEST interests in mind by thinking about the welfare of the child. The fact that (s)he made the effort to seek the best care for the child instead of just treating the rash and sending her home is a positive thing.

As for the grandparents seeking healthcare, I do not know the laws in your state, but most states have a law that a visit to the ER is treated as an EMERGENCY until triaged and seen by the MD. That means that the ER had no choice but to have her seen until the MD found that it was not an Emergent situation, which (s)he did when they became concerned about possible abuse, so the entire process is within the level of care provided. I would check the laws in your state for clarification, however, I do not quite understand why you are upset that they (the hospital/MD) treated your grandaughter.....The resulting fallout of their treatment is not their fault, it is a normal progression after finding results that could be abuse.